Debra Herr v. Airborne Freight ( 1997 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 97-1486
    ___________
    Debra L. Herr,                     *
    *
    Plaintiff - Appellant,       *
    *    Appeal from the United States
    v.                           * District Court for the
    * Eastern District of Missouri.
    Airborne Freight Corporation,      *
    *
    Defendant - Appellee.        *
    ___________
    Submitted: September 9, 1997
    Filed:   December 12, 1997
    ___________
    Before FAGG, LAY, and LOKEN, Circuit Judges.
    ___________
    LOKEN, Circuit Judge.
    Debra Herr appeals the district court’s1 grant of summary judgment
    dismissing her federal and state law claims of sex discrimination against
    her former employer, Airborne Freight Corporation. See Herr v. Airborne
    Freight Corp., 
    950 F. Supp. 273
    (E.D. Mo. 1996). The issue on appeal is
    whether Herr presented sufficient evidence that Airborne’s reason for
    failing to give her work and then discharging her as a temporary driver was
    a pretext for intentional sex discrimination. See Ryther v. KARE
    1
    THE HONORABLE GEORGE F. GUNN, JR., United States District Judge for
    the Eastern District of Missouri.
    11, 
    108 F.3d 832
    , 836-38, 848 (8th Cir.), cert. denied, 
    117 S. Ct. 2510
    (1997), construing St. Mary’s Honor Center v. Hicks, 
    113 S. Ct. 2742
    , 2749
    (1993), and Texas Dep’t of Community Affairs v. Burdine, 
    450 U.S. 248
    , 254-
    56 (1981).2 After reviewing the district court’s grant of summary judgment
    de novo, viewing the evidence in the light most favorable to Herr, see
    Hutson v. McDonnell Douglas Corp., 
    63 F.3d 771
    , 775 (8th Cir. 1995), we
    affirm.
    I.
    Airborne employs truck and van drivers to deliver time-sensitive
    packages.    Airborne drivers work under the National Master Freight
    Agreement, a multi-employer collective bargaining agreement between
    Airborne, other cartage companies, and the International Brotherhood of
    Teamsters.    Under this Agreement, Airborne’s full-time and part-time
    permanent drivers have regular delivery routes and are guaranteed a minimum
    number of work hours each week.       Airborne routes are distributed to
    permanent drivers through a bi-annual bidding process.          A driver’s
    seniority for bidding purposes runs from his or her date of hire as a
    permanent driver.
    All new Airborne drivers are probationary employees. During their
    first thirty days, probationary drivers need not join the Union, and their
    employment is terminable at will by Airborne. Drivers who successfully
    complete this probationary period become “casual” drivers. Casual drivers
    fill in for permanent drivers who are absent, ill, or on vacation. Casual
    drivers must join the Union and pay union dues for any month in which they
    work at least one day. However, they have no seniority rights under the
    collective bargaining agreement -- Airborne has unfettered discretion to
    decide who will fill in for absent permanent drivers and who will be
    invited to bid on
    2
    These federal cases govern Herr’s claims under the Missouri Human Rights Act
    as well as her Title VII claims. See Midstate Oil Co. v. Missouri Comm’n on Human
    Rights, 
    679 S.W.2d 842
    , 845-46 (Mo. banc 1984).
    -2-
    new or unclaimed permanent routes. When a permanent driver is absent, the
    supervisor on duty consults a list of casual drivers and calls the driver
    that the supervisor thinks is best able to complete the available route.
    Thus, the ranks of Airborne casual drivers may include some who are never
    chosen for temporary work assignments and will never be asked to bid for
    permanent routes. Airborne supervisors periodically purge these unwanted
    temporary employees from the official list of casual drivers, with no
    written notice of that action to the now-terminated casual driver.
    Supervisor Jeff Bruer hired Herr and gave her a brief orientation in
    March or April of 1992. Her thirty-day probation began on May 6 when she
    reported for work at Airborne’s facility at the St. Louis airport. After
    two or three days learning to sort packages and assisting permanent drivers
    with deliveries, Herr was assigned a route often used to train probationary
    employees. Herr admits she was unable to finish that route on time. Bruer
    recalls assigning Herr to a route for one week and then cutting that
    assignment short when she failed to finish the route two or three times.
    Herr recalls working various routes during her second and third weeks of
    probation but cannot recall specific assignments.
    According to Herr, Bruer told her on May 21 that she had
    satisfactorily completed probation and could call in for work as a casual
    driver on the following Monday.3 Herr did so and was told there was no
    work available. She called Airborne every week in June and July of 1992
    and periodically until 1994 but was always told there was no work
    available. When she finally pressed for an explanation, Herr was told in
    March 1994 that she had been discharged. The Union filed a grievance on
    her behalf. Airborne produced a June 1992 document stating that she was
    terminated for unsatisfactory job performance and listing May 21, 1992, as
    her last day of work. The grievance was then dismissed as untimely, and
    the Union did not appeal.
    3
    May 21 would have been only half way through Herr’s thirty-day probation
    period, but we credit this testimony for summary judgment purposes.
    -3-
    Herr filed this action in December 1995, claiming that Airborne
    failed to give her work as a casual driver and discharged her on account
    of her sex. In response to Airborne’s motion for summary judgment, Herr
    alleged that Airborne’s profferred explanation of unsatisfactory job
    performance is a pretext for sex discrimination.       Her theory is that
    Airborne hired and inadequately trained her only to be an entry in its
    employment records, in other words, to inflate Airborne’s roster of women
    drivers. In support of this theory, Herr avers that, when she complained
    to a union shop steward in 1994, he told her that she was an “illusion,”
    that Airborne never intended to give her any work.4           In addition,
    emphasizing that she was not notified of discharge until March 1994, Herr
    asserts that Airborne’s termination document must have been back-dated.
    She reasons that even if there was an administrative breakdown in notifying
    her, someone would have told her when she kept calling in looking for work,
    if she had in fact been terminated in June 1992.
    II.
    Herr’s sex discrimination claim has two components, Airborne’s
    failure to assign her work as a casual driver, and its decision to
    terminate.
    A. Herr’s failure-to-assign-work claim must overcome two undisputed
    facts -- she failed to complete assigned routes while on probation, and
    Airborne has unfettered discretion under the collective bargaining
    agreement to assign casual drivers as much
    4
    This statement by a third party would be inadmissable hearsay if offered in this
    form at trial. As Herr has not shown that the shop steward would be available as a trial
    witness, she may not rely on this statement in opposing summary judgment. See Pink
    Supply Corp. v. Hiebert, Inc., 
    788 F.2d 1313
    , 1319 (8th Cir. 1986); 11 MOORE’S
    FEDERAL PRACTICE ¶ 56.14[1][d] (Matthew Bender 3d ed. 1997). Moreover, the
    statement is highly ambiguous, particularly given the Union’s lack of concern with
    probationary and casual drivers as reflected in the collective bargaining agreement.
    Thus, we disregard it.
    -4-
    or as little work as it chooses. Herr responds by alleging that Airborne
    gave her inadequate training and no assignments because it only pretends
    to hire women drivers. However, she presented no evidence that any other
    probationary driver received more training. Title VII and the Missouri
    Human Rights Act do not require that Airborne provide a particular level
    of new employee training, only that women be given equal employment
    opportunities. See Smith v. Monsanto Chemical Co., 
    770 F.2d 719
    , 723 n.3
    (8th Cir. 1985), cert. denied, 
    475 U.S. 1050
    (1986). Moreover, Herr’s
    assertion that Airborne did not genuinely employ women drivers is contrary
    to undisputed portions of the summary judgment record.      The woman who
    referred Herr to Airborne in 1991, Kelly Hotchkiss, was then a casual
    driver and is now a permanent Airborne driver. Between 1991 and 1996,
    Airborne hired twenty-one women drivers in St. Louis.        Twelve remain
    Airborne drivers, and four others were terminated during probation. There
    is no evidence that Airborne’s male drivers suffered less attrition during
    this period.
    Lacking evidence of systematic discrimination in Airborne’s hiring
    and training of women drivers, Herr’s failure-to-assign-work claim fails
    because Airborne had no obligation to assign her temporary work. Herr
    canvassed other women drivers informally and could muster no credible
    evidence that Airborne supervisors have used their discretion to
    discriminate against women casual drivers. The only other example of a
    woman who survived probation but was not given casual work, Paula Cox,
    admitted that she, too, was unable to deliver packages in a timely manner.
    There is no evidence that any casual male driver failed to make timely
    deliveries yet continued to receive casual work. Thus, the district court
    properly dismissed Herr’s failure-to-assign-work claim. Indeed, as to this
    claim, Herr failed to present a prima facie case of intentional sex
    discrimination.
    B. Turning to the wrongful termination claim, we note at the outset
    the unusual nature of this claim.      As we have explained, Airborne’s
    supervisors lawfully elected not to assign Herr work as a casual driver.
    It is likewise apparent that she would never
    -5-
    have been invited to bid on a permanent route and acquire seniority as a
    permanent driver. In these circumstances, her “termination” was a mere
    formality -- the excising of a redundant name from Airborne’s official list
    of casual drivers that had no financial impact on Herr.        Indeed, she
    admitted as much when she applied for and began collecting unemployment
    insurance in early June 1992. Herr nonetheless argues that she presented
    sufficient evidence to convince a reasonable fact finder that Airborne’s
    stated reason for discharge, unsatisfactory job performance, was a pretext
    for intentional discrimination. She reasons that Airborne’s failure to
    notify her of discharge, and its use of an allegedly back-dated termination
    document, are sufficient to infer intentional discrimination.
    Regarding Airborne’s failure to notify, Herr asks how she could have
    called Airborne every week in the months of June and July of 1992, and then
    again with some frequency into 1994, without being told she had been
    discharged. Jeff Bruer testified that he would ordinarily tell a casual
    driver of termination, but that he could not remember whether or not he
    notified Herr. Crediting Herr’s testimony that she was not told of the
    termination, the fact remains that Airborne has little reason to formally
    terminate casual drivers because they only work when they are given work.
    Airborne’s lack of a policy to notify unwanted casual drivers that they
    have been terminated may be an unkind business practice, but it is not
    evidence of sex discrimination. Likewise, absent evidence that Airborne
    back-dated Herr’s termination document, and there is no such evidence, that
    document is consistent with Airborne’s non-discriminatory description of
    its business practices -- an internal business record used to remove an
    unwanted casual driver from the official list that only came to light in
    this case when the Union filed a grievance on Herr’s behalf.
    Herr also argues that she was not given a second chance to perform
    the job satisfactorily, contrasting her treatment with numerous letters
    disciplining, but not discharging, male permanent drivers who committed
    work-related infractions. But Herr cannot meet her burden of proving that
    she was similarly situated to these male
    -6-
    employees in all relevant respects. See Harvey v. Anheuser-Busch, Inc.,
    
    38 F.3d 968
    , 972 (8th Cir. 1994). Herr’s poor performance occurred when
    she was a probationary driver, unprotected by the collective bargaining
    agreement and its discipline process that governed permanent drivers.
    Moreover, there is no reason for Airborne to issue discipline letters to
    casual drivers because its recourse for a casual driver’s poor performance
    is not to give that driver more work.       Thus, Herr was not similarly
    situated to male permanent drivers regarding disciplinary procedures.
    Finally, in considering this wrongful termination claim, it is
    significant that Jeff Bruer both hired and fired Herr. There is a strong
    inference that discrimination was not a motivating factor if the same
    person hired and fired the plaintiff within a relatively short period of
    time. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328,1337 (8th
    Cir. 1996); Lowe v. J.B. Hunt Transp., Inc., 
    963 F.2d 173
    , 174-75 (8th Cir.
    1992).    This inference arises because it is unlikely that the same
    supervisor would hire a woman, only to turn around and discharge her for
    that reason. Cf. Proud v. Stone, 
    945 F.2d 796
    (4th Cir. 1991). Herr
    cannot overcome this inference by alleging without supporting evidence that
    Airborne hired her merely to pad its roster of women drivers.
    The judgment of the district court is affirmed.
    LAY, Circuit Judge, dissenting.
    Airborne filed a motion for summary judgment in the district court,
    alleging the company discharged Herr for a non-discriminatory reason, and
    Herr failed to show such reason was pretextual.       In doing so, as the
    district court found, Airborne expressly assumed Herr could make a prima
    facie showing of sex discrimination. For this reason, the district judge
    did not address the issue of whether Herr made a prima facie showing of sex
    discrimination. See Appellant’s Appendix at 213, 215 ( reprinting Memo.
    and Order, Herr v. Airborne Freight Corp., No. 4:95CV02355 GFG (E.D. Mo.
    Dec. 31, 1996)).    The trial court ruled Herr failed to establish the
    existence of a genuine issue
    -7-
    of material fact on the question of pretext, and Herr did not rebut
    Airborne’s proffered nondiscriminatory reason for her discharge.      The
    parties briefed and argued this case on the basis of the district court’s
    ruling.5
    In this circuit, grounds not raised in the district court shall not
    form the basis of an appeal. See United States v. One Parcel of Property,
    
    959 F.2d 101
    , 103 (8th Cir. 1992) (citing In re Pan Am. World Airways,
    Inc., 
    905 F.2d 1457
    , 1462 (11th Cir. 1990)        (?[I]f a party hopes to
    preserve a claim, argument, theory, or defense for appeal, [the party] must
    first clearly present it to the district court, that is, in such a way as
    to afford the district court an opportunity to recognize and rule on it.”).
    Despite this fundamental rule, the majority affirms the district court on
    grounds not raised in that court’s ruling: namely, Herr failed to make a
    prima facie showing of sex discrimination.6
    This issue is not before this court on appeal. Even if it were,
    there is ample evidence to support a prima facie case of sex
    discrimination.7 To urge otherwise overlooks basic evidence and slights
    permissible inferences available to Herr, violating the fundamental rule
    that on motion for summary judgment, the non-moving party is entitled to
    all favorable inferences. See Hutson v. McDonnell Douglas Corp., 
    63 F.3d 771
    , 775 (8th Cir. 1995).
    5
    Airborne repeated its concessions to this court: ?In this case, Airborne was
    willing to assume that Ms. Herr had met her initial burden and undertook to
    demonstrate that she was terminated for a legitimate, nondiscriminatory reason.”
    Appellee’s Br. at 8.
    6
    Where an issue is not disputed on summary judgment in the district court, the
    non-moving party is deprived of fair notice if the district court or this court raises the
    issue sua sponte.
    7
    This may explain why Airborne conceded the issue of Herr’s prima facie case.
    Although the evidence is disputed, Herr clearly demonstrated evidence of a prima facie
    case of sex discrimination sufficient to survive summary judgment.
    -8-
    The majority only draws inferences in favor of Airborne.        For
    example, Herr testified Bruer, her immediate supervisor, told her she had
    passed the probationary period, and she would be called in as a casual
    worker. Bruer does not contradict this statement, and for two years, Herr
    called Airborne seeking casual work, and Airborne continually told Herr
    there was no work available. This gives rise to an inference that Bruer
    did make this statement. Cf. Adickes v. S.H. Kress & Co., 
    398 U.S. 144
    ,
    156-57 (1970) (allowing inference of conspiracy where police officer did
    not deny presence in restaurant when management refused to serve white
    teacher accompanied by six black students, and police officer later
    arrested teacher outside the restaurant). The majority claims it credits
    Herr’s testimony on this point, yet draws no inference in favor of Herr.
    Further, in 1994, the Union filed a grievance on Herr’s behalf.
    Suddenly, Airborne asserted it had terminated Herr two years earlier. To
    support this assertion, Airborne produced a document dated June 1992,
    stating Airborne terminated Herr for unsatisfactory job performance.8 Herr
    urges Airborne never notified her of the alleged termination, and the
    majority claims it credits Herr’s testimony on this point. Moreover, the
    majority acknowledges Bruer testified he could not remember whether he
    notified Herr of her termination.      Based upon this evidence, Herr is
    entitled to the reasonable and favorable inference that Airborne’s
    proffered reason for not assigning her work for two years is pretextual.
    Curiously, the only inference the majority draws from Airborne’s
    conduct is that Airborne’s “lack of a policy to notify unwanted casual
    drivers that they have been
    8
    In its brief to this court, Airborne claims “[f]or reasons unknown to everyone,
    Ms. Herr apparently did not receive a copy of the termination notice.” Appellee’s Br.
    at 5. It seems odd that Airborne would imply Herr should have received a copy of the
    notice if the termination notice is, as the majority terms it, “an internal business record
    used to remove an unwanted casual driver from the official list.” Supra (emphasis
    added).
    -9-
    terminated may be an unkind business practice, but it is not evidence of
    sex discrimination.” The majority overlooks that evidence of pretext need
    not constitute direct evidence of discrimination. In most instances that
    is impossible. The evidence of pretext along with the elements of the
    prima facie case serve to create a permissible inference sufficient to take
    the case to the jury. See United States Postal Serv. Bd. of Governors v.
    Aikens, 
    460 U.S. 711
    , 716 (1983) (?[S]ensitive and difficult” issue of
    intentional discrimination will frequently be proven by circumstantial
    evidence of pretext, as ?[t]here will seldom be Hutson, 63 F.3d at 775
    , I fail to see how
    the majority can draw this as a controlling inference in favor of Airborne.
    This case may not be important legal precedent.          However, it
    illustrates the unfortunate and pervasive philosophy that the jury is not
    an important fundamental right of litigants, and that judges can adequately
    substitute their own findings of fact in summary proceedings. This is a
    philosophy to which the law does not subscribe.
    Judge John Gibbons, former Chief Judge for the Third Circuit,
    observed in dissent in a different context:
    Part of my difficulty with the majority’s position probably
    results from a perception of the nature of the judicial process
    and the role of juries in that process. . . . In the process
    of gaining public acceptance for the imposition of sanctions,
    the role of the jury is highly significant. The jury
    -10-
    is a sort of ad hoc parliament convened from the citizenry at
    large to lend respectability and authority to the process.
    Judges are often prone to believe that they, alone, can bear
    the full weight of this legitimizing function. I doubt that
    they can.     Any erosion of citizen participation in the
    sanctioning system is in the long run likely, in my view, to
    result in a reduction in the moral authority that supports the
    process.
    In re Japanese Elec. Products Antitrust Litig., 
    631 F.2d 1069
    , 1093 (3d
    Cir. 1980) (Gibbons, J., dissenting).    This statement is particularly
    apropos to the majority’s holding in the present case.
    I dissent.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -11-